Katyal and Conway: Whitaker Appointment is Unconstitutional

Katyal and Conway: Whitaker Appointment is Unconstitutional November 9, 2018

Neil Katyal, former Solicitor General, and George Conway, husband of Baghdad Kellyanne Conway, argue in a New York Times op-ed column that Trump’s appointment of Matt Whitaker as Acting Attorney General is unconstitutional even as a temporary appointment because that position is a “principal officer” answerable only to the president and thus requires Senate confirmation.

The distinction between a “principal officer” and an “inferior officer” is that a principle officer is one who answers only to the president, while inferior officers answer first to those above them in the chain-of-command at their agencies. Principal officers must be confirmed by the Senate, one of the important checks and balances between the legislative and executive branches of government. And they dispose quickly of the argument that this is okay because it’s only an interim position:

Much of the commentary about Mr. Whitaker’s appointment has focused on all sorts of technical points about the Vacancies Reform Act and Justice Department succession statutes. But the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power…

It is one thing to appoint an acting underling, like an acting solicitor general, a post one of us held. But those officials are always supervised by higher-ups; in the case of the solicitor general, by the attorney general and deputy attorney general, both confirmed by the Senate.

Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job. He has now been vested with the law enforcement authority of the entire United States government, including the power to supervise Senate-confirmed officials like the deputy attorney general, the solicitor general and all United States attorneys…

In times of crisis, interim appointments need to be made. Cabinet officials die, and wars and other tragic events occur. It is very difficult to see how the current situation comports with those situations. And even if it did, there are officials readily at hand, including the deputy attorney general and the solicitor general, who were nominated by Mr. Trump and confirmed by the Senate. Either could step in as acting attorney general, both constitutionally and statutorily.

Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in a position of such grave responsibility. The public is entitled to that assurance, especially since Mr. Whitaker’s only supervisor is Mr. Trump himself, and the president is hopelessly compromised by the Mueller investigation. That is why adherence to the requirements of the Appointments Clause is so important here, and always.

Quite so. This could very well end up being challenged in court, which might involve both a statutory challenge regarding the Vacancies Reform Act and a constitutional challenge, based on the Appointments Clause.

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